Fetrow's Estate

Opinion by

Mr. Justice Potter,

Joshua Fetrow died February 25, 1864, leaving a will which contained the following provisions: “I give, devise and bequeath unto Lucinda Dietz widow of Daniel Dietz deceased, now living with me during her natural life, the House and land situate in said Spring Garden Township, adjoining the Codorous Navigation, Loucks Mill road and lands of Daniel Immel and Alexander Hay and being the same premises lately occupied by Joseph Sample. She to have and hold the same and keep it in repair during her natural life at her death the same to be sold and the proceeds thereof to be equally divided among the surviving devises [devisees] named in this will or their legal representatives.”

Lucinda Dietz, who subsequently married John Rutter, died December 15,1914, and the property devised to her for life was sold by George A. Fetrow, administrator d. b. n. c. t. a. of Joshua Fetrow.

The question, here in controversy, is whether, when the testator directed that the proceeds of the real estate in which he devised a life interest to Lucinda Dietz should “be equally divided among the surviving devisees named in this will or their legal representatives,” he intended that the recipients of his bounty should be the devisees who were living at the time of his own death, or those only who would survive the life tenant. The auditor held that he intended the former, while the court below was of opinion that the latter was intended. In the one case the legacies would vest at the death of testator, and in the other at the death of the life tenant. As only one of the devisees, Michael Fetrow, survived the life tenant, the court below held that he took the entire fund and awarded it to his executors. This appeal was taken by Amelia J. Rupp, a legal representative of a devisee who died after the death of the testator but before the death of the life tenant.

The general rule in Pennsylvania is, and always has been, that the word “survivor” or “surviving” following a prior gift, is understood as referring to the death of the testator, unless a contrary intention is apparent: Shallcross’s Est., 200 Pa. 122; Woelpper’s App,, 126 Pa. 562; Ross v. Drake, 37 Pa. 373. We find nothing in the will of Joshua Fetrow which discloses an intention that -the words “surviving devisees” are to apply to a period other than that of testator’s death. In order to make them apply to the period of the life tenant’s death, the court below inserted the additional word “then.” But that word is not found in the will, in that connection. It also became necessary practically to ignore the words “or their legal representatives.” It is true that the court suggests that these words were intended to provide an alternative distribution of the fund in the event of - all the legatees named in the will dying before the death of the life tenant. But the result of such a construction is that in case one of the legatees survived the life tenant, which actually occurred, the words “or their legal representatives” are given no effect whatever.

We think the reasonable interpretation of the phrase “surviving devisees or their legal representatives,” is to refer the word “surviving,” in accordance with the rule,to testator’s death and construe “or their legal representatives” (whether meaning executors and administrators, heirs or next of kin), as intended to prevent the lapse of the share of any legatee who might die before the time for distribution should arrive. The court admits that the words must have been given that meaning, if all .the legatees had died before the date of the life tenant’s death. It is not probable that the testator intended that, if none of the legatees should live to share in the fund, the legal representatives of all should take, but, if one only should survive, the legal representatives should all be excluded. We think the construction adopted by the auditor Was in accordance with testator’s intention. • If “surviving” refers to the death of the life tenant, as was held by the court below, then the death of Michael Fetrow during the life tenancy would have created an intestacy. The interpretation placed upon the phrase by the auditor avoids intestacy and secures equality of distribution among the legatees. We think the testator evidently intended that the proceeds arising from the sale of the property should be divided among certain persons, who were definitely determined by his will' as construed in Fetrow’s Est., 58 Pa. 424, and the legal representatives of such of them as predeceased the life tenant.

The assignments of error are all sustained, the decree of the court below is reversed, and the record is remitted that distribution may be made in accordance with the report of the auditor.